The parties to this litigation are my clients, a railroad worker named Fred Gunther, who lives in San Diego, California, and his employer, or ex-employer, the San Diego and Arizona Eastern Railway Company.

For the purposes of clarity in my remarks, I'm going to refer to Mr. Gunther as the petitioner.

He is the only petitioner before the Court and I will refer to the respondent, San Diego and Arizona Eastern Railway Company, rather than by that long name as the carrier.

Before I recite briefly the background, upon which the question before the Court is predicated, I think I will allude briefly to the issue because I think that that will clarify our approach to the whole problem.

I take it to that.

We're not concerned here with the narrow question as to whether or not there was a factual question for trial before the judge in the District Court at the time he granted the respondent's motion for summary judgment.

I think I'm entitled to assume and I certainly urge that a larger question presents itself to the Court because of the unique aspect of the case, not being one where a plaintiff is pursuing an ordinary civil remedy or a common law remedy, but a case where the petitioner is suing pursuant to Section 153 (p) of Title 45 of the United States Code to enforce an award of the National Railroad Adjustment Board.

That was the nature of the petition.

And so the larger question it seems to me is, did the District Court, as affirmed by the Court of Appeals respond to that petition in a manner consistent with congressional purpose and with the policy underlying our labor laws when it chose to interpret the collective bargaining agreement in a manner contrary to the way it had been interpreted by the National Railroad Adjustment Board and on the basis of that to grant summary judgment.

I see the light is --

Chief Justice Earl Warren: We'll recess now Mr. Decker.

Mr. Charles W. Decker: That the judicial remedy provided by Section 153 (p) of Title 45 is of extreme importance to the railroad worker.

If he goes, takes his grievance or his claim to the Railroad Adjustment Board as is his right under the Railway Labor Act and if that claim is sustained, he wins his case before the board, and then because the award is not self-enforcing, if his employer refuses to comply with that award, he has only one place to go for relief and that's the District Court under Section 153 (p).

Obviously, this is an important remedy.

Now, to get to the background of this particular case, my client, Mr. Gunther has worked for the San Diego and Arizona Eastern Railway Company for many, many years, most of it as an engineer so that by 1954, he was the most senior engineer and the employee of the company.

During that time, he was General Chairman for the Brotherhood of Locomotive Fireman and Engineman, a standard railway organization which up until 1958, as I recall, held the contract on the property for firemen and hostlers.

It can be presumed then that during this time he was participating in enforcing and applying that collective bargaining agreement.

In 1953, on December 8, as a matter of fact, of 1953, Mr. Gunther became 70 years of age and at that time, although in the past he'd only been required to take a physical examination once a year.

The company required him to start taking physical examinations each three months, which he did without anything untoward occurring until the last such examination which occurred on December 15, 1954 or thereabouts, at which time he was informed by his employer that the company doctors did not consider that he was physically fit to continue in service as a railroad engineer.

The findings of these physicians were reviewed by the chief surgeon in San Francisco and he advised, and it's in the record before the board as well as the court, that in his opinion, Mr. Gunther was likely to suffer an acute coronary episode.

On the basis of that, Mr. Gunther was taken out of service.

He immediately initiated and commenced the exhaustion of his administrative remedy and eventually his case wound up before the National Railroad Adjustment Board.

There was an initial award in 1956 which established a three-doctor panel and a subsequent award or interpretation thereof in 1958, which on the basis of the reports of the physicians in the three-doctor panel established that Mr. Gunther should be reinstated to his position with back pay.

Justice John M. Harlan: Is there any claim that the railroad examination or the examination by the railroad doctor was not a good faith determination?

Mr. Charles W. Decker: This is not alleged.

There's no such allegation in the petition and there was no such allegation in any of the affidavits before the court at the time when summary judgment was entered.

The award itself, I think we should take a look at, it's found at page 9 of the record.

The first award back in 1956, being on page 5 and then the interpretation on page 9.

The Court will note that the board set out its findings initially saying that it is true that the carrier has the right and responsibility in determining within proper limits, the physical fitness of employees to remain in service.

It is true also that the employee has the right to priority in service according to his seniority and pursuant to the agreements so long as he is physically qualified, where these two rights come in to collision, it is consistently been held by this division that it has jurisdiction to determine whether the employee has wrongfully been deprived of service.

The Board then goes on to point out that since the determination of the facts necessary to enable the division to make an award on this issue requires medical confidence.

It finds that a three-doctor panel should be established and concludes if the decision of the majority of such Board shall support the decision of the carrier's chief surgeon, the claim will be denied.

If not, it will be sustained with pay pursuant to rule on the property from October 15, 1955.

Now, the event, excuse me, the events that transpired after that, of course were that a neutral physician was appointed that is the carrier did comply with the award to the extent of cooperating in the establishment of a three-doctor panel but when that neutral doctor's report was in, the carrier chose to interpret his findings as being supporting those of its chief surgeon rather than being contrary.

Justice Potter Stewart: Mr. Decker.

Mr. Charles W. Decker: Excuse me sir, yes?

Justice Potter Stewart: Going back for a moment again to the original order on page 5, is it your understanding that the division of the board in the language that you read to us has followed that policy in that way doing things without regard at all to any collective bargaining agreement on the property?

Mr. Charles W. Decker: I can not answer that question sir.

I -- there is not in the record but there was before the appellate court, a whole host of decisions by the Adjustment Board setting up three-doctor panels of this kind and there are reports in the federal reporting system indicating that this has happened in the past.

Justice Potter Stewart: Of course he's right is a priority, seniority rights necessarily depend upon the collective bargaining agreements.

So to that extent the second sentence on the third from the last paragraph on page 6 necessarily refers to the collective bargaining agreement, was it not?

Mr. Charles W. Decker: That's right.

Justice Potter Stewart: Without the agreement he would not have any seniority rights?

Mr. Charles W. Decker: Yes, that's true.

Except sir, I would like to note that what is the agreement is perhaps the question for the Board.

The problem has existed in this case throughout has been that the court has considered that the only evidence, evidentiary source for the agreement between the brotherhood and Railroad in this case is this document right here which bears on its face, the legend that it's the rules effective March 1, 1935 revised rates of pay effective October something, October 30 I think it is 1937.

So the question as to what the agreement is, we contend is before the court it was -- and that properly the Board has the right to look elsewhere than within the framework of this document, the green covers of this document to determine what the underlying rights and duties of the parties are.

Justice Potter Stewart: What puzzled me about this order as in connection with what happened afterwards was simply this.

That this order, it seems to be is tied to the agreement in so far as, it correctly says that this petitioner has certain seniority rights to remain on the job, and it furthers says that he can not be deprived of those rights in bad faith.

There's a reference to a good faith with which I suppose the carrier would agree.

But then from then on the interpretation didn't make any reference at all of good faith or bad faith, it simply superseded the carrier's doctor.

Those carrier's doctors have professional judgment with the professional judgment of three other doctors and no reference to bad faith and there was no further reference that I could find in the collective bargaining agreement.

Mr. Charles W. Decker: That's true sir.

Now, I want to read this language though in that connection.

If carrier through its medical staff has removed an employee from service in good faith on the basis of a fair standard of fitness applied to his physical condition adequately determined is more than just a problem of good faith here.

And I take it that the subsequent determination by the board, that the man should be reinstated with bad faith constitutes an implied finding by the Board that on the basis of the reports of the neutral position that perhaps the physical fitness of Mr. Gunther had not been adequately determined by the company or it had not applied a fairly standard of fitness.

Continuing then the -- in 1958 this open ended award was made affine.

And the Board said the issue of fact upon which the prior award was conditioned having been determined in favor of claimant said conditional award should be made absolute and final and the claim sustained as therein provided, and then it went ahead with its award and order.

Now, within the period of time which the labor --

Justice William J. Brennan: May I ask you?

Mr. Charles W. Decker: Yes, sir?

Justice William J. Brennan: (Inaudible)

Mr. Charles W. Decker: As a practical matter, no.

Justice William J. Brennan: (Inaudible)

Mr. Charles W. Decker: That's right.

He will be 82 on December 8.

Justice William J. Brennan: (Inaudible)

Mr. Charles W. Decker: That's true sir, that's the way the petition reads just before -- that was before the District Court.

Justice William J. Brennan: And that's part of the opinion?

Mr. Charles W. Decker: That's correct sir.

Justice William J. Brennan: (Inaudible)

Mr. Charles W. Decker: Well, so far as the record before this Court indicates, it's being pressed, but as a practical matter the man is 82 years old.

The carrier has raised the point that he's precluded because he hasn't reported for a physical examination and established his physical fitness.

Justice William J. Brennan: (Inaudible)

Mr. Charles W. Decker: Yes, under the 59 contract.

But, this again is simply not in the record.

The record so far is that it appears now --

Justice William J. Brennan: (Inaudible)

Mr. Charles W. Decker: No, I'm asking this Court to give my client his day in court whatever that maybe whether it's a trial de novo or a limited review of some kind which I intend to get to later.

Justice William J. Brennan: (Inaudible)

Mr. Charles W. Decker: Shall we go up the record?

Well, Sir, first of all, as it's been pointed out in several opinions of this Court and in the congressional records before hearings in Congress.

It was a standard practice before the Humphreys case in 1963 for the Railroad Organizations to enforce awards by threat of strike.

This could account for the lapse of two years almost between the time the 58 award was made and the time the petition was filed in the San Diego court, the second time.

Just before the limitation period round there was another suit started in San Diego and that's the suit just before this Court today of course.

Initially, the respondent, the carrier without answers simply filed a motion for summary judgment asserting that this was the agreement, there's nothing in here limiting the employer's right to determine the physical fitness of his employees.

Therefore on theory there, the Board's jurisdiction is limited to the interpretation on application of existing agreements and this is the agreement, the claim was thought.

Initially, the motion for summary judgment was rejected but without prejudice to its renewal and it was then renewed on this same identical ground and the district court granted that motion.

I would like to call the Court's attention to what the District Court said.

It's perfectly clear that what the District Court did was to interpret this document read it very carefully, noted for instance, that the only reference in this agreement to physical condition is a provision in here that a one-eyed engineer has a right to displace a junior fireman.

That's the only thing in this book that has any reference at all to physical condition of employees.

Mr. Charles W. Decker: The agreement read as a whole has enormous gaps in it and one of the examples it seems to me of the type of agreement it is as being a unique instrument and something quite different than we ran across in industry, labor industry contracts other than the rail industry, is the fact that there would be absolutely nothing in it at all about what a man's rights are, specifically, what a man's rights are to in the event he's found not to be physically qualified.

There's not even any provision in there for this yearly examination that was taken.

This, I simply refer to fortify my argument that a reasonable construction of this agreement requires resort to extrinsic evidence.

The District Court said in its opinion that the board should have interpreted the agreement the way I have.

The Court of Appeals said in its opinion that the board has exceeded its jurisdiction obviously inferring that it had accepted the proposition that the board's jurisdiction was limited to the interpretation and application of documents and that it did not find in this document any limitation upon the employer's right to determine the physical fitness of its employees therefore it disagreed with the board, the board's award was ultra virus and should be set aside.

Now, I don't have much time and I want to get to the issue, was this summary disposition of the petition in this case consistent with congressional purpose, when it enacted the compulsory arbitration scheme for the disposition of disputes arising out of grievances, and out of the interpretation and application of collective bargaining agreements.

May I call the Court's attention to the fact that the jurisdictional grant in the Railway Labor Act does not limit the board's jurisdiction to the interpretation and application of agreements, it confers upon the board jurisdiction to determine disputes arising out of grievances and out of the interpretation and application of agreements.

Since I filed the petitioner's brief in this case and today I've had occasion to concern myself somewhat more with the issue before the Court in terms of scope of review and in that connection, I have noticed Judge Frankfurter's reference to the fact that when the Railway Labor Act was amended in 1934 to provide for compulsory arbitrations, Congress chose to use the language which was a part of what is now Section 16 (2) of Title 49.

This is the provision for enforcement of reparation orders made by the Interstate Commerce Commission.

If the Court will refer to that Section, it will see that the language in the Railway Labor Act, Section 153 (p) which refers to the mode of enforcement is taken from the Interstate Commerce Act.

I'm referring now to the language which says that the petition shall proceed, and that is the suit on the petition, shall proceed in all respects as other civil suits and the order of the Division Adjustment Boards of the prima facie evidence of the facts therein stated.

Now in 1889 when the Erdman Act being came the law, the predecessor of the present Interstate Commerce Act, the Congress was very much concerned about the constitutional limitations, it might impose upon the power of an administrative agency to grant money judgments and consequently, it placed in the enforcement section of the Act having to do with reparation orders and what should happen to them after they're made by the commission that the suit was to proceed as in all respects as a civil suit and a jury trial was to be permitted.

And then in 1906, when the Hepburn Act was adopted amending the original Interstate Commerce Act, the reference to a jury trial was deleted.

I take it that we can infer from congressional record that what Congress was trying to do was to create an administrative agency which could make a reparation order which would be enforceable in court and providing for review in the enforcing court only to the extent that the constitution required.

Now it's my opinion based upon my study of the congressional record that this undoubtedly is the most reasonable explanation for what Congress intended in 1934 when it chose this language to use in describing the nature of the proceeding to be had in an enforcement action of awards from Railway Adjustment Board.

I call the Court's attention to the testimony before the Senate Committee of Congress in connection with this Bill proposed amendment to the Railway Labor Act, wherein --

Justice Hugo L. Black: That is in brief?

Mr. Charles W. Decker: It's not, Judge Black.

But in that record of the hearings before the Interstate Commerce Committee of the Senate, both carrier representatives and labor representatives made it clear that they considered that what they were doing in providing for enforcement of adjustment board awards was setting up that they were to be reviewed in exactly the same manner that arbitration awards were to be reviewed as established in Section 9 and the provisions for arbitration had been in the Act since it was initially passed.

Justice Byron R. White: Do you have a citation there?

Mr. Charles W. Decker: Yes I do.

I'm a little bit confused trying to hurry here and I can provide those citations to the Court, but the conclusion of counsel's answer.

I have them the page number of the record on it, Thank you.

Chief Justice Earl Warren: Mr. Gregory.

Argument of Waldron A. Gregory

Mr. Waldron A. Gregory: Mr. Chief Justice the associate justices, and may it please the Court.

This case involves a question which we believe is an extremely important one when one considers as the Court of Appeals points out in its decision that the railroad has a prime responsibility with respect to its operations in interstate commerce and as we well know with respect to its own employee.

The railroad as is conceded in the petitioner's brief and in his argument has the -- has had a rule over a period of years and as his brief concedes that has not been in the collective bargaining agreement which rule requires its engineers who will operate locomotives and trains to take a physical examination at periodic intervals to determine their qualification to perform that job.

Mr. Gunther, the petitioner over the years recognizing that rule and at the same time as counsel has pointed out being a general chairman of the fireman's organization reported to those physical examinations and passed them over the years.

The rule requires that if one becomes age 70; he must take such a physical every 90 days.

This he did and on about the fifth examination, shortly after age 71, the carrier's physicians found that there was some condition of his heart from which it could be supposed or predicted that he might have an arterial coronary episode.

As has been pointed out here, there's been no charge from the beginning of this case to now that the carrier acted in bad faith or that the carrier's doctors in making their examinations acted in bad faith or in fact in any way other than in utmost good faith.

Thereafter, the matter was reviewed in San Francisco and the findings were confirmed and Mr. Gunther then contended that his rights under the collective bargaining agreement had been violated his seniority right, his seniority right, a right predicated on an agreement provision preventing layoff and a right predicated upon agreement provision providing for investigation upon dismissals.

Now a question arose here -- I might state that that argument was presented to the carrier as is required under Section 3 First (i) and thereafter, after being handled on the property was presented in the same manner to the adjustment board as it appears in the record.

Justice William J. Brennan: No appeal are you telling us to the just cause provision?

Mr. Waldron A. Gregory: Pardon me Your Honor?

Justice William J. Brennan: What about that provision agreement on –

Mr. Waldron A. Gregory: The agreement provides that --

Justice William J. Brennan: Just cause, is that the one is that the --

Mr. Waldron A. Gregory: In essence yes.

Justice William J. Brennan: Yes, thank you.

Mr. Waldron A. Gregory: It provides for no dismissal without prior investigation and --

Justice Byron R. White: And for fault.

Mr. Waldron A. Gregory: And for fault, being guilty as charged, right.

However there was no finding of the board with respect to being guilty or not guilty as charged under that section, so far as the record demonstrates.

In other words, the board referred to the seniority provision and he sad that it would not be deprived of the seniority unless an examination had been conducted in bad faith and that seemed to be the test.

Justice Byron R. White: The word is bad -- how does good and bad faith get into the right--

Mr. Waldron A. Gregory: Well, good and bad faith --

Justice Byron R. White: I mean, if you're relying on the contract there's something this contract about good and bad faith?

Mr. Waldron A. Gregory: Well, the interpretation by the adjustment board so states Your Honor.

Justice Byron R. White: Well, yes but you take their interpretation of the contract for one purpose and not another?

Mr. Waldron A. Gregory: Pardon me Your Honor?

Justice Byron R. White: Will you take their interpretation of the contract for one purpose and not another?

Mr. Waldron A. Gregory: Well, I think Your Honor that when they set forth the question -- first of all, they don't point to any provision, as far as I can see, that limits the carrier in making these decisions as based upon its doctor's findings as to the ability of an engineer for foreign service.

It doesn't point to any provision in the agreement providing for review of these decisions and it doesn't point to any provision in the agreement providing for a three-doctor panel to arbitrate this matter.

Justice Byron R. White: Well, now I know it doesn't refer to any particular provision, but in response to the carrier's contentions, it said in its initial ruling that the matter of a fitness had to be adequately determined than the contract.

And if it wasn't, there was a right to reinstatement.

Mr. Waldron A. Gregory: That's true.

Justice Byron R. White: Is it now then that their interpretation of the contract and I take it.

Mr. Waldron A. Gregory: Well, as a --

Justice Byron R. White: And then they go on and say that the words challenged where the physical fitness findings the carrier challenged that they will appoint a three-member panel to determine the matter.

Mr. Waldron A. Gregory: Well, they said --

Justice Byron R. White: It will deprive them on that, doesn't it?

Mr. Waldron A. Gregory: Well, Your Honor in the 1956 award, we say first appointed this board.

They stated that if the finding of a three-doctor panels shall sustain the chief surgeon, as it be one way and if the finding overruled them, it'd be the other way.

They delegated the entire responsibility to this three-doctor panel.

And as far as I know, having determined that the issue was good and bad faith and adequacy of findings as was discussed by the Ninth Circuit Court of Appeals, there doesn't seem to be any finding that there was any violation, if those were parts of the contract.

Our position is Your Honor that those were not -- that the contract did not provide in any manner for a review of the decision of the chief surgeon.

Justice Byron R. White: So your specific point is not that the board couldn't have reviewed this finding of fitness, but that it shouldn't have reverted to a three-doctor panel?

Mr. Waldron A. Gregory: Our --

Justice Byron R. White: The only thing that's wrong here is that they did use the three-man panel instead of determining the matter itself making evidence in determining the matter itself?

Justice Byron R. White: On the adequately determined question, I mean that's an adequate determination as this much as they're ruling here as good faith.

Mr. Waldron A. Gregory: Well, my position on that Your Honor is that this adequate determination is a statement made by the board which doesn't appear to be founded in the contract.

Justice Byron R. White: Nor does good faith.

Mr. Waldron A. Gregory: Now, that's true too.

But I would concede that if the carrier acted in bad faith or there was a charge of it that there's a -- as the Court of Appeals points out that there'd be a possibility of a proper grievance under the contract, otherwise, I wouldn't think so.

Now --

Justice Potter Stewart: Well, what -- as I understand what you just said, you conceded at least for the purposes of this argument that if it could be shown that the finding that this man was in questionable health was in bad faith on the part of carrier, the man would have a grievance under the contract.

That is because of the seniority rights given to him under the contract.

Mr. Waldron A. Gregory: Right Your Honor.

Justice Potter Stewart: When what if it could be shown that the violator was no bad faith.

Still, there was a completely mistaken diagnosis of this man and that on any objective test by any qualified physicians, he was entirely well and that the finding that he was in dubious health was a matter of a complete mistake.

They got somebody else's records or something like that. Would he then have a grievance?

Mr. Waldron A. Gregory: I think not Your Honor.

Justice Potter Stewart: Wouldn't he then under the collective bargaining agreement have his seniority rights to serve as an engineer if he was in perfect good health?

Mr. Waldron A. Gregory: I would --

Justice Potter Stewart: In fact?

Mr. Waldron A. Gregory: Well, Your Honor, I would think not because I don't think that you -- the carrier can state that its doctor is always correct.

In other words doctors do make mistakes and I think that the carrier has a right to rely in what it thinks is the proper professional opinion of his doctor, it's not educated as to that.

And it -- when it follows -- if it refused to follow the doctor's opinion, even though if the doctor made a mistake -- or to restate that -- If the doctor said that the man was not qualified to run a locomotive.

And the carrier put the man on the locomotive nevertheless, what would have been the outcome if there had been an accident in that.

Justice Potter Stewart: Well, I don't question the carrier's right -- if not the carrier's duty in the first instance to take this man out of the cab of the locomotive, if they have a finding by their chief surgeon that he's going to have a heart attack.

But then let's say the man has a reason to think that he's perfectly well and he has then –- he finds that he can prove that the finding of the company's chief surgeon was based upon a fact that he, by mistake, got somebody else's cardiogram.

Now doesn't -- wouldn't he have a right under the -- wouldn't the petitioner have a right under the collective bargaining agreement to his ordinary seniority right, if he could show that in fact he was entirely well and that the finding by the -- upon which the carrier relied was just maybe not a negligent mistake but just completely unsubstantiated.

Mr. Waldron A. Gregory: Your Honor, I wouldn't think that would be the end of the collective bargaining agreement but I would think that he would have the right as a grievance.

In other words that --

Justice Potter Stewart: Well the grievance would have to be under the agreement wouldn't it?

In the absence of any collective bargaining agreement at all, I suppose the carrier could fire and hire engineers at will without any seniority or anything else, isn't it?

Mr. Waldron A. Gregory: That's true.

Justice Potter Stewart: So it would have to be under the agreement, wouldn't it?

Mr. Waldron A. Gregory: Yes.

Well it seems to me that if that was brought to the attention of the carrier and the carrier nevertheless flouted it that he would have a right.

Justice Potter Stewart: Then there'd be bad faith if that's the case, as what you said.

Mr. Waldron A. Gregory: That's right.

That's what I think is predicated on bad faith.

Now Mr. Decker pointed out that this green agreement, was the thing that the -- well I want to say one thing before I pass to that.

That is that this engineer was not discharged in any respect, this engineer was taken out of active service.

Now it's true that it could be said that in effect that if you take -- if you prevent somebody from using their seniority rights that you then bring about a discharge, if you look at it that way.

However, there's no showing or argument that the man was taken off the roster or was discharged as that section prescribed.

Justice Byron R. White: But he would never be recalled.

Mr. Waldron A. Gregory: He wouldn't be recalled except under these circumstances Your Honor, if he should go and take a physical under this 1959 agreement and if he were well and then he would pass and he would be entitled to go back on an engine.

Justice Byron R. White: Even of 82?

Mr. Waldron A. Gregory: If he passed the physical we would have no choice but to follow our agreement.

Now this agreement --

Justice William J. Brennan: Even at age 82?

Mr. Waldron A. Gregory: Well, Your Honor --

Justice William J. Brennan: I wouldn't be much interested in riding your railroad then.

Mr. Waldron A. Gregory: I agree with you Your Honor.

The only thing I can say is we'd be in violation of the agreement, if we didn't put him back.

It might we'd be willing to balance that against safety at the interstate commerce in our opinion and I don't know what would happen.

But I would say there would be an agreement violation since 1959.

Now my opponent said that there was a green pamphlet that covered the man's rights as of 1938 and therefore as of 1954.

We've demonstrated in our brief as I think the lower courts have pointed out that the 1938 agreement was not believed necessarily to be the whole agreement if somebody would point to a provision which restricted the right of the carrier to follow his doctor's findings.

In other words, if the petitioner had at any point, pointed to any evidence of such a provision or pointed to any evidence of a three-doctor panel arbitration prior to 1959 that would have been taken into account and the court in fact made several invitations to the petitioner to do so and he did not do so.

So that the court did not limit it to the green booklet, as a matter of fact a testimony of -- and the affidavits of Brotherhood of Locomotive Engineers general chairman on the motion under Rule 60 (b).

And I believe earlier in that case, it was pointed out that petitioner was familiar with the agreement with Brotherhood of Locomotive Engineers agreement in that he represented other engineers on the property in asserting their rights under the agreement.

And that he would be therefore fully familiar with it and that comes about because the general chairman of the Brotherhood of Locomotive Fireman and Engineman, under the statute has the right to represent anybody in the service.

Whether they'd be engineers or fireman and if they are members of his organization as is permitted under the Railway Labor Act because it's an organization national in scope admitting to membership both engineers and fireman, why, he could do this.

Now, he was familiar with the agreement and yet, he didn't and couldn't point to any provision other than those that seniority, layoff and discharge for cause that have been mentioned.

Chief Justice Earl Warren: He made a (Inaudible) did he not in the Court of Appeals?

Mr. Waldron A. Gregory: No, well Your Honor, he did this.

After the case was decided and after long time had passed, when he was in the Court of Appeals, he made a motion under Rule 60 (b) of the rules of civil procedure and said that there were 1944 and 1947 letters.

Between Southern Pacific and its engineers which there were, which letters said that if there were interpretations of rules on Southern Pacific that those interpretations would flow over to San Diego and Arizona Eastern bargaining agreement into or onto similarly worded rules.

Now, it was apparent when the court was considering the Rule 60 (b) motions and is entitled to consider all the evidence.

It was apparent that there were no similarly worded rules on the San Diego and Arizona Eastern at that time, or at any time until 1959, when Article 35 was amended to include this three-doctor panel review.

And that was a change made pursuant to the Section 6 of the Railway Labor Act which provides a method for changing agreements.

Our position is that it is entirely improper to use Section 3 which is the minor dispute provision to lodge a dispute in order to get a provision in the agreement when it's the way to do that is under Section 6, which is the method for changing the agreements.

In other words if the person didn't have sick pay, if this man had said that he was sick and wanted sick pay.

And if the agreement didn't provide it and if he made a dispute out of it and took to the adjustment board.

And the adjustment board awarded him sick pay that would be making a provision in the agreement which isn't in there and wasn't in there by a means that would be improper and in violation of Section 6.

Chief Justice Earl Warren: You spoke with the great importance of this case to the railroad, what is the great importance of it now saying that if you have agreed to adhere with the unions that in the future this three-doctor board would in such cases be appointed?

Mr. Waldron A. Gregory: Well, Your Honor.

In the first place, we think that what I just explained that using one procedure to accomplish another objective would be wrong it's important in that respect.

Secondly, it's important in so far as determination of physical condition is concerned because the agreement that we arrived at provides for a specialist in the field, it provides -- it's a -- to my way of understanding, I don't know what kind of a board that the adjustment board ordered the three doctors, but this sets forth what doctors they shall be.

And this comes at a time when the carrier having been forced in collective bargaining to enter into the agreement, now has to relay on this situation.

And I think that, it's that -- the preservation of the agreement intact until it's changed is important.

Justice Hugo L. Black: Was there anything that before that agreement was changed that cause -- that require the railway to adhere to that I mean the standards specially those member anything of that kind and determining the physical condition of the employees.

Mr. Waldron A. Gregory: No, Your Honor.

It wasn't anything that required them to do so but they did have standards and they did have specialists and they're involved in this case.

Chief Justice Earl Warren: Well, is there any other ground between the case that they were all specialists in this case?

Mr. Waldron A. Gregory: No.

Chief Justice Earl Warren: Well then, didn't the board determine, did it not, that there should've been some standards that the railroad have to go by in determining whether a man was physically fit or not?

Mr. Waldron A. Gregory: Yes.

Chief Justice Earl Warren: Do you think they were not?

It was not necessarily for them to have any standards?

Mr. Waldron A. Gregory: Well I said they did have standards.

Chief Justice Earl Warren: What?

Were they articulated?

Mr. Waldron A. Gregory: Well, they are articulated in Rule 74 or in the standard as set forth but they're not in the record.

Chief Justice Earl Warren: Were they articulated for this particular petitioner?

Mr. Waldron A. Gregory: Yes, they were.

Chief Justice Earl Warren: You know where could you find it?

Mr. Waldron A. Gregory: I would have to go outside the record but there are standards set up in the hospital department.

And these standards are used by railroad physicians.

And the General Chairman of the fireman or any other -- any employee can find out what they are.

And certainly general chairman of the union can.

Justice Hugo L. Black: Is one standard, I believe you're wrong.

It seems to me there's one standard supposed to be that the railroad --

Mr. Waldron A. Gregory: That end thing you said sir?

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Yes.

Justice Hugo L. Black: In other words (Inaudible) --

Mr. Waldron A. Gregory: Well, Your Honor --

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Well it's --

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Well that's from the railroad standpoint, the railroad will follow the doctor's advice, but the railroad --

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Right.

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: You mean this 1959 agreement?

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Not before this agreement Your Honor.

Not before the ‘59 agreement he did not have.

Justice William J. Brennan: He did not have you say --

Mr. Waldron A. Gregory: Right.

Justice William J. Brennan: -- in the absence of some showing of what you call bad faith.

Mr. Waldron A. Gregory: Right, the absence of bad faith.

Justice William J. Brennan: Otherwise under the agreement the determination by the railroad's position is conclusive upon it and he does -- and he is without a remedy.

Mr. Waldron A. Gregory: Right.

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Well, Your Honor it wasn't under the agreement, our position is that since there's nothing in the agreement which takes away the right of the carrier to decide the physical capacity of the engineer or to review its doctor on that decision that therefore there is no agreement restriction.

Justice Hugo L. Black: Did you have an agreement with this one.

Mr. Waldron A. Gregory: No, we did not Your Honor.

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: That's -- we had a collective bargaining agreement, yes, but not relating to that subject.

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Yes.

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Well our position -- yes.

Justice Tom C. Clark: Well you say that they can discharge him (Inaudible)

Mr. Waldron A. Gregory: Well, Your Honor our position is that that --

Justice Tom C. Clark: (Inaudible)

Mr. Waldron A. Gregory: Well first of all, I would think it was just cause but actually I don't think it comes under that provision because I don't think that physical fitness, I think that's an act of God, it's not something that the carrier is doing --

Justice Tom C. Clark: (Inaudible)

Mr. Waldron A. Gregory: Well --

Justice Tom C. Clark: (Inaudible)

Mr. Waldron A. Gregory: Well it would -- the doctor making the decision who would be to man with the --

Justice Tom C. Clark: (Inaudible)

Mr. Waldron A. Gregory: I guess so Your Honor, so far as we are concerned.

The --

Justice William J. Brennan: What I don't quite get.

I understand that as originally presented to the adjustment board, that got beyond the railroad for a moment.

You concede that the claim of Gunther relied upon the seniority provision of the agreement -- the investigation proceeding of the agreement and what was the third you said?

Mr. Waldron A. Gregory: Layoff.

Justice William J. Brennan: And the layoff.

Mr. Waldron A. Gregory: That is seniority in reversed order of layoff.

Justice William J. Brennan: Yeah, now that's the posture in which you've got to the board.

Mr. Waldron A. Gregory: Yes.

Justice William J. Brennan: Now why is it you say the board's decision was not a decision of the contractual claims made by Gunther?

Mr. Waldron A. Gregory: Because we feel that the contractual claims had to do with seniority --

Justice William J. Brennan: Excuse me, that wasn't my question.

Mr. Waldron A. Gregory: I'm sorry.

Justice William J. Brennan: My question is why do you say that the board's decision, favorable to Gunther was not rested on a resolution of one of those contractual claims?

Mr. Waldron A. Gregory: First, because the board itself setup what its test was, good faith.

Second, because the court -- the board never did decide the question of good faith.

Good faith was never challenged all the way up to the board, it was never exhausted on the property as required under the Railway Labor Act, if there was a charge of bad faith.

Justice William J. Brennan: But they did find in Gunther's favor.

Mr. Waldron A. Gregory: They found in Gunther's favor by saying “We will just turn this over to a panel of three doctors and whatever they say goes.

Justice William J. Brennan: And is it your position that nothing in the agreement, even though these contractual -- this Gunther's claim was rested on contract provision, none of those embraced in the authority and the board to delegate the reexamination --

Mr. Waldron A. Gregory: True.

Justice William J. Brennan: -- to a doctor -- of three-doctor board, is that it?

Mr. Waldron A. Gregory: Yes.

Justice Byron R. White: Well, I have seen this and this suggests that the board didn't even purport to be relying on the contract in doing this.

Mr. Waldron A. Gregory: That's true.

Justice Byron R. White: You don't -- you say, you suggest to us that we should not accept this adjustment board's decision as being rested on the contract, as being an interpretation of the contract as claimed in the presentation.

Mr. Waldron A. Gregory: That's correct.

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Right.

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Well, at that point Your Honor, page 43 of the record there's an exhibit which is a black book, which is the rules of the company, and just cause is --

Justice Hugo L. Black: What?

Mr. Waldron A. Gregory: The rules of the company, general rules and regulations of transportation department, those rules set forth all of the things that govern the employee such as the --

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Well, Your Honor no, there's no such rule but Your Honor we feel that that's not covered by any agreement provision and if it was covered by the rules of course, the rules are not part of collective bargaining agreement.

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Right.

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Well, Your Honor of course the question is what was the opinion of the doctor?

In other words --

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Well, Your Honor that's bad faith again but in the absence of bad faith, I would say, yes.

And I would say that that's what if anything would have led to the 1959 collective bargaining agreement.

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Well I --

Justice Hugo L. Black: (Inaudible)

Mr. Waldron A. Gregory: Well, Your Honor, I think it's a question of physical condition as against the exercise of seniority under the agreement.

And I think this physical condition thing takes it out of the scope of the agreement.

Chief Justice Earl Warren: Mr. Gregory, what can prove this as to the only way it could be turned to the carrier and remove petitioner from service and good faith on the basis of a fair standard of fitness was to have petitioner examined by a neutral board of three physicians.

Well what is wrong with that?

Mr. Waldron A. Gregory: Well, nothing is wrong with it as except this that some --

Chief Justice Earl Warren: That you lost before the board.

Mr. Waldron A. Gregory: Well --

Chief Justice Earl Warren: Show them that they were wrong about it.

Mr. Waldron A. Gregory: No, Your Honor the thing that's wrong is that it's a majority of two out of three.

So the two doctors say one doctor is wrong.

We haven't given up the right to rely on our own doctor's decision until 1959.

And so that the thing that's wrong with it is that something's being injected into the agreement that wasn't in there in the first place.

By a means that was not used in ‘59 namely by a means it's not provided in the Railway Labor Act, Section 6.

Chief Justice Earl Warren: Well, the board said it had two -- there were two rights under the contract, one accruing to the carrier and one accruing to the employee.

Mr. Waldron A. Gregory: True.

Chief Justice Earl Warren: First, that the carrier in a fair way could determine who is fit to act --

Mr. Waldron A. Gregory: Right.

Chief Justice Earl Warren: -- and be employed by it.

And the second was that the employee had certain priority due to his seniority.

Mr. Waldron A. Gregory: True.

Chief Justice Earl Warren: In the company, and that in this situation those two rights came into conflict.

And then the board said that in order to decide that conflict, the only way that it could do it when the employee's doctor said, he was all right and the railroad said that he was not fit was for them, as a board to appoint, three neutral doctors to determine then a majority of them should prevail.

Now what is wrong with that?

Mr. Waldron A. Gregory: Well, the thing is wrong with it Your Honor is that it was a fashioning of a remedy that wasn't provided for in the agreement.

That it was, this is not like the National Railway Adjustment Board.

This is a -- I mean like the Taft-Hartley industry.

This is a case where one neutral is assigned for one case and another neutral and another neutral.

Now if you could change -- if you could provide that under the agreement as it was and then you can also provide at a later time that when this 1959 agreement is brought up that you should have three doctors.

You might be able to emasculate that remedy and the other in the reverse.

So I think that the board, when it was talking about the first thing you said it was talking about a right in the carrier.

When, I was talking about the second thing that you mentioned the seniority right, it's talking about a right emanating from the agreement.